[I have scanned this article in from the
published version. Copyright 1979 by the University of Chicago Law
School, All rights reserved. While special characters for the
Icelandic letters "eth" and "thorn" exist in HTML, they do not look
anything like the Icelandic letters, at least on my browser, so I am
using "d" and "th" instead.]

PRIVATE CREATION AND ENFORCEMENT OF LAW:
A HISTORICAL CASE

Iceland is known to men as a land of
volcanoes, geysers and glaciers. But it ought to be no less
interesting to the student of history as the birthplace of a
brilliant literature in poetry and prose, and as the home of a
people who have maintained for many centuries a high level of
intellectual cultivation. It is an almost unique instance of a
community whose culture and creative power flourished
independently of any favouring material conditions. and indeed
under conditions in the highest degree unfavourable. Nor ought it
to be less interesting to the student of politics and laws as
having produced a Constitution unlike any other whereof records
remain and a body of law so elaborate and complex, that it is hard
to believe that it existed among men whose chief occupation was to
kill one another.

The purpose of this paper is to examine the legal
and political institutions of Iceland from the tenth to the
thirteenth centuries. They are of interest for two reasons. First,
they are relatively well documented; the sagas were written by people
who had lived under that set of institutions[3]
and provide a detailed inside view of their workings. Legal conflicts
were of great interest to the medieval Icelanders: Njal, the
eponymous hero of the most famous of the sagas,[4]
is not a warrior but a lawyer--"so skilled in law that no one was
considered his equal." In the action of the sagas, law cases play as
central a role as battles.

Second, medieval Icelandic institutions have
several peculiar and interesting characteristics; they might almost
have been invented by a mad economist to test the lengths to which
market systems could supplant government in its most fundamental
functions. Killing was a civil offense resulting in a fine paid to
the survivors of the victim. Laws were made by a "parliament," seats
in which were a marketable commodity. Enforcement of law was entirely
a private affair. And yet these extraordinary institutions survived
for over three hundred years, and the society in which they survived
appears to have been in many ways an attractive one . Its citizens
were, by medieval standards, free; differences in status based on
rank or sex were relatively small;[5]
and its literary, output in relation to its size has been compared,
with some justice, to that of Athens.[6]

While these characteristics of the Icelandic legal
system may seem peculiar, they are not unique to medieval Iceland.
The wergeld--the fine for killing a man--was an essential part of the
legal system of Anglo-Saxon England, and still exists in New
Guinea.[7]
The sale of legislative seats has been alleged in many societies and
existed openly in some. Private enforcement existed both in the
American West[8]
and in pre-nineteenth-century Britain; a famous character of
eighteenth-century fiction, Mr. Peachum in Gay's "Beggar's Opera,"
was based on Jonathan Wild, self-titled 'Thief- Taker General," who
profitably combined the professions of thief-taker, recoverer of
stolen property, and large-scale employer of thieves for eleven
years, until he was finally hanged in l725.[9]
The idea that law is primarily private, that most offenses are
offenses against specific individuals or families, and that
punishment of the crime is primarily the business of the injured
party seems to be common to many early systems of law and has been
discussed at some length by Maine with special reference to the early
history of Roman law.[10]

Medieval Iceland, however, presents institutions
of private enforcement of law in a purer form than any other
well-recorded society of which I am aware. Even early Roman law
recognized the existence of crimes, offenses against society rather
than against any individual, and dealt with them, in effect, by using
the legislature as a special court. [11]
Under Anglo-Saxon law killing was an offense against the victim's
family, his lord, and the lord of the place whose peace had been
broken; wergeld was paid to the family, manbote to the crown, and
fightwite to the respective lords. [12]
British thief-takers in the eighteenth century were motivated by a
public reward of [[sterling]] 40 per
thief.[13]
All of these systems involved some combination of private and public
enforcement. The Icelandic system developed without any central
authority comparable to the Anglo-Saxon king;[14]
as a result, even where the Icelandic legal system recognized an
essentially "public" offense, it dealt with it by giving some
individual (in some cases chosen by lot from those affected) the
right to pursue the case and collect the resulting fine, thus fitting
it into an essentially private system.

In the structure of its legislature, Iceland again
presents an almost pure form of an institution, elements of which
exist elsewhere. British pocket boroughs, like Icelandic godord;,
represented marketable seats in the legislature, but Parliament did
not consist entirely of representatives from pocket boroughs. All
godord were marketable and (with the exception, after Iceland's
conversion to Christianity, of the two Icelandic bishops) all seats
in the lögrétta were held by the owners of godord, or men
chosen by them.

The early history of Iceland thus gives us a
well-recorded picture of the workings of particularly pure forms of
private enforcement and creation of law, and of the interaction
between the two. Such a picture is especially interesting because
elements of both have existed, and continue to exist, in many other
societies, including our own.

There are three questions in the economics of law
which I believe this history may illuminate. The first is the
feasibility of private enforcement.[15]
The second is the question of whether political institutions can and
do generate "efficient" law. The third is the question of what laws
are in fact efficient. All three involve formidable theoretical
difficulties; in the body of this paper I limit myself to sketching
the arguments, describing how the Icelandic institutions worked, and
attempting to draw some tentative conclusions. Appendix A gives some
numerical information on the scale of punishments in Iceland, and
Appendix B suggests how the Icelandic system might be adapted to
modern society.

II. THE MODERN
LITERATURE

Some years ago, Becker and Stigler pointed out
that a system of private enforcement of law, in which the person who
caught a criminal received the fine paid by the offender, would have
certain attractive characteristics;[16]
in particular, there would be no incentive for bribery of the
enforcer by the criminal, since any bribe that it paid the criminal
to offer it would pay the enforcer to refuse.[17]
The argument was criticized by Landes and Posner; they argued that
since the level of fine determined both the "price" of criminal
activities to the criminal and the "price" of enforcement activities,
it could not in general be set at a level which would optimize both
criminal and enforcement activities.[18]
They further argued that enforcement had a positive externality
(raising the probability of catching a criminal, hence lowering total
crime) which would not be internalized by the enforcer; this effect
by itself would tend to lead to suboptimal enforcement.

The first argument may well be correct; since
government enforcement also provides no guarantee of optimality, it
leaves open the question of which system is superior, as Landes and
Posner pointed out. This is an empirical question and one on which
the Icelandic case may provide some evidence. Landes and Posner's
second argument shows insufficient ingenuity in constructing
hypothetical institutions. If "enforcers" contract in advance to
pursue those who perpetrate crimes against particular people, and so
notify the criminals (by a notice on the door of their customers),
the deterrent effect of catching criminals is internalized; the
enforcers can charge their customers for the service. Such
arrangements are used by private guard firms and the American
Automobile Association, among others. The AAA provides its members
with decals stating that, if the car is stolen, a reward will be paid
for information leading to its recovery. Such decals serve both as an
offer to potential informants and as a warning to potential thieves.
Under medieval Icelandic institutions, who was protected by whom was
to a considerable degree known in advance.

Another difficulty with private enforcement is
that some means must be found to allocate rights to catch
criminals--otherwise one enforcer may expend resources gathering
evidence only to have the criminal arrested at the last minute by
someone else. This corresponds to the familiar "commons" problem. One
solution in the literature[19]
is to let the right to prosecute a criminal be the private property
of the victim; by selling it to the highest bidder he receives some
compensation for the cost of the crime. This describes precisely the
Icelandic arrangements.

Posner has asserted at some length[20]
that current common law institutions have produced economically
efficient law. I will argue that while that may or may not be true of
those institutions, there are reasons why the Icelandic institutions
might be expected to produce such law. Two specific features of
"efficient" law in the Icelandic system which I will discuss are
efficient punishment and the distinction between civil and criminal
offenses.

III. HISTORY AND
INSTITUTIONS

In the latter half of the ninth century, King
Harald Fairhair unified Norway under his rule. A substantial part of
the population left;[21]
many went either directly to Iceland, which had been discovered a few
years before, or indirectly via Norse colonies in England, Ireland,
Orkney, the Hebrides, and the Shetland Islands. The political system
which they developed there was based on Norwegian (or possibly
Danish[22])
traditions but with one important innovation--the King was replaced
by an assembly of local chieftains. As in Norway (before Harald)
there was nothing corresponding to a strictly feudal bond. The
relationship between the Icelandic godi and his thingmen (thingmenn)
was contractual, as in early feudal relationships, but it was not
territorial; the godi had no claim to the thingman's land and the
thingman was free to transfer his allegiance.

At the base of the system stood the godi (pl.
godar) and the godord (pl. godord). A godi was a local chief who
built a (pagan) temple and served as its priest; the godord was the
congregation. The godi received temple dues and provided in exchange
both religious and political services.

Under the system of laws established in A.D. 930
and modified somewhat thereafter, these local leaders were combined
into a national system. Iceland was divided into four quarters, and
each quarter into nine godord.[23]
Within each quarter the godord were clustered in groups of three
called things. Only the godar owning these godord had any special
status within the legal system, although it seems that others might
continue to call themselves godi . (in the sense of priest) and have
a godord (in the sense of congregation); to avoid confusion, I will
hereafter use the terms "godi" and "godord" only to refer to those
having a special status under the legal system.

The one permanent official of this system was the
logsogumadr or law- speaker; he was elected every three years by the
inhabitants of one quarter (which quarter it was being chosen by
lot). His job was to memorize the laws, to recite them through once
during his term in office, to provide advice on difficult legal
points, and to preside over the lögrétta, the
"legislature."

The members of the lögrétta were the
godar, plus one additional man from each thing, plus for each of
these two advisors. Decisions in the lögrétta were made,
at least after the reforms attributed to Njal, by majority vote,
subject apparently to attempts to first achieve
unanimity.[24]

The laws passed by the lögrétta were
applied by a system of courts, also resting on the godar. At the
lowest level were private courts, the members being chosen after the
conflict arose, half by the plaintiff and half by the
defendant--essentially a system of arbitration. Above this was the
thing court or "Varthing", the judges[25]
in which were chosen twelve each by the godar of the thing, making
thirty -six in all. Next came the quarter-thing for disputes between
members of different things within the same quarter; these seem to
have been little used and not much is known about
them.[26]
Above them were the four quarter courts of the Althing (althingi) or
national assembly--an annual meeting of all the godar each bringing
with him at least one-ninth of his thingmen. Above them, after Njal's
reforms, was the fifth court. Cases undecided at any level of the
court system went to the next level; at every level (except the
private courts) the judges were appointed by the godar, each quarter
court and the fifth court having judges appointed by the godar from
all over Iceland.[27]
The fifth court reached its decision by majority vote; the other
courts seem to have required that there be at most six (out of
thirty-six) dissenting votes in order for a verdict to be
given.[28]

The godord itself was in effect two different
things. It was a group of men--the particular men who had agreed to
follow that godi, to be members of that godord. Any man could be
challenged to name his godord and was required to do so, but he was
free to choose any godi within his quarter and to change to a
different godord at will.[29]
It was also a bundle of rights--the right to sit in the
lögrétta, appoint judges for certain courts, etc. The
godord in this second sense was marketable property. It could be
given away, sold, held by a partnership, inherited, or
whatever.[30]
Thus seats in the law- making body were quite literally for
sale.

I have described the legislative and judicial
branches of "government" but have omitted the executive. So did the
Icelanders. The function of the courts was to deliver verdicts on
cases brought to them. That done, the court was finished. If the
verdict went against the defendant, it was up to him to pay the
assigned punishment--almost always a fine. If he did not, the
plaintiff could go to court again and have the defendant declared an
outlaw. The killer of an outlaw could not himself be prosecuted for
the act; in addition, anyone who gave shelter to an outlaw could be
prosecuted for doing so.

Prosecution was up to the victim (or his
survivors). If they and the offender agreed on a settlement, the
matter was settled.[31]
Many cases were settled by arbitration, including the two most
serious conflicts that arose prior to the final period of breakdown
in the thirteenth century. If the case went to a court, the judgment,
in case of conviction, would be a fine to be paid by the defendant to
the plaintiff.

In modern law the distinction between civil and
criminal law depends on whether prosecution is private or public; in
this sense all Icelandic law was civil. But another distinction is
that civil remedies usually involve a transfer (of money, goods, or
services) from the defendant to the plaintiff, whereas criminal
remedies often involve some sort of "punishment." In this sense the
distinction existed in Icelandic law, but its basis was
different.

Killing
was made up for by a fine. For murder a man could be outlawed, even
if he was willing to pay a fine instead. In our system, the
difference between murder and killing (manslaughter) depends on
intent; for the Icelanders it depended on something more easily
judged. After killing a man, one was obliged to announce the fact
immediately; as one law code puts it: "The slayer shall not ride past
any three houses, on the day he committed the deed, without avowing
the deed, unless the kinsmen of the slain man, or enemies of the
slayer lived there, who would put his life in
danger."[32]
A man who tried to hide the body, or otherwise conceal his
responsibility, was guilty of murder.[33]

IV. ANALYSIS

One obvious objection to a system of private
enforcement is that the poor (or weak) would be defenseless. The
Icelandic system dealt with this problem by giving the victim a
property right--the right to be reimbursed by the criminal--and
making that right transferable. The victim could turn over his case
to someone else, either gratis or in return for a
consideration.[34]
A man who did not have sufficient resources to prosecute a case or
enforce a verdict could sell it to another who did and who expected
to make a profit in both money and reputation by winning the case and
collecting the fine. This meant that an attack on even the poorest
victim could lead to eventual punishment.

A second objection is that the rich (or powerful)
could commit crimes with impunity, since nobody would be able to
enforce judgment against them. Where power is sufficiently
concentrated this might be true; this was one of the problems which
led to the eventual breakdown of the Icelandic legal system in the
thirteenth century.[35]
But so long as power was reasonably dispersed, as it seems to have
been for the first two centuries after the system was established,
this was a less serious problem. A man who refused to pay his fines
was outlawed and would probably not be supported by as many of his
friends as the plaintiff seeking to enforce judgment, since in case
of violent conflict his defenders would find themselves legally in
the wrong. If the lawbreaker defended himself by force, every injury
inflicted on the partisans of the other side would result in another
suit, and every refusal to pay another fine would pull more people
into the coalition against him.

There is a scene
in Njal's Saga that provides striking evidence of the stability of
this system. Conflict between two groups has become so intense that
open fighting threatens to break out in the middle of the court. A
leader of one faction asks a benevolent neutral what he will do for
them in case of a fight. He replies that if they are losing he will
help them, and if they are winning he will break up the fight before
they kill more men than they can afford![36]
Even when the system seems so near to breaking down, it is still
assumed that every enemy killed must eventually be paid for. The
reason is obvious enough; each man killed will have friends and
relations who are still neutral--and will remain neutral if and only
if the killing is made up for by an appropriate wergeld.

I suggested earlier that one solution to the
externality problem raised by Landes and Posner was to identify in
advance the enforcer who would deal with crimes committed against a
potential victim. In Iceland this was done by a system of existing
coalitions--some of them godord, some clearly defined groups of
friends and relatives. If a member of such a coalition was killed, it
was in the interest of the other members to collect wergeld for him
even if the cost was more than the amount that would be collected;
their own safety depended partly on their reputation for doing so.
This corresponds precisely to the solution to the problem of
deterrence externality described above.

How well do the Icelandic laws fit the ideas of
"economically efficient" law in the modern
literature?[37]
In Appendix A, I give some quantitative calculations on the value of
various fines. Here I will discuss two qualitative features of
Icelandic law which seem to correspond closely to the prescriptions
of modern analysis.

The first is the prevalence of fines. A fine is a
costless punishment; the cost to the payer is balanced by a benefit
to the recipient. It is in this respect superior to punishments such
as execution, which imposes cost but no corresponding benefit, or
imprisonment, which imposes costs on both the criminal and the
taxpayers.[38]

The difficulty with using fines as punishments is
that many criminals may be unable to pay a fine large enough to
provide adequate deterrence. The Icelandic system dealt with this in
three ways. First, the offenses for which fines were assessed were
offenses for which the chance of detection was unity, as explained
below; it was thus sufficient for the fine to correspond to the cost
of the crime, without any additional factor to compensate for the
chance of not being caught.[39]
Second, the society provided effective credit arrangements. The same
coalitions mentioned above provided their members with money to pay
large fines. Third, a person unable to discharge his financial
obligation could apparently be reduced to a state of temporary
slavery until he had worked off his debt.[40]

The second feature is the distinction between what
I have called civil and criminal offenses. Since civil offenses were
offenses in which the criminal made no attempt to hide his guilt, a
reasonably low punishment was sufficient to deter most of them. High
punishments were reserved for crimes whose detection was uncertain
because the criminal tried to conceal his guilt. A high punishment
was therefore necessary to keep the expected punishment (at the time
the crime was committed) from being very low.[41]
Further, the difference between the two sorts of offenses provided a
high "differential punishment" for the "offense" of concealing one's
crime, an offense which imposed serious costs--both costs of
detection and the punishment costs resulting from the need to use an
inefficient punishment (since no payable fine, multiplied by a low
probability of being caught, would provide a sufficiently high
deterrent).

V. GENERATING EFFICIENT
LAW

Is there any reason to expect the Icelandic system
to generate efficient law? I believe the answer is a qualified yes.
If some change in laws produced net benefits, it would in principle
be possible for those who supported such a change to outbid its
opponents, buy up a considerable number of godord, and legislate the
change. A similar potential exists in any political system; one may
think of it as the application of the Coase theorem to law. The
effect is limited by transaction costs--which were probably large
even in the Icelandic system but, because the godord was legally
marketable, smaller than under other political
arrangements.[42]

A second reason is that inefficient laws provided,
in some cases, incentives for individual responses which could in
turn make changes in the laws Pareto desirable (without side
payments). Suppose, for example, that the wergeld for killing was too
low--substantially below the point at which the cost of an increase
to an individual (involving the possibility that he might be
convicted of a killing and have to pay) balanced the advantages of
increased security and higher payments if a relative were killed. The
individual, functioning through the coalition of which he was a
member, could then unilaterally "raise" the wergeld by announcing
that if any member of the coalition were killed, the others would
kill the killer (or some other member of his coalition, if he were
not accessible) and let the two wergelds cancel. This is essentially
what happens in the famous ' killing match" in Njal's Saga, where
Hallgerd and Bergthora alternately arrange revenge killings while
their husbands, Njal and Gunnar, pass the same purse of silver back
and forth between them.[43]
Once such policies became widespread, it would be in the interest of
everyone, potential killers, potential victims, and potential
avengers, to raise the legal wergeld. And even before the legal
wergeld was raised, killers would begin offering higher payments (as
part of "out-of- court" settlements) to prevent revenge
killings.[44]

CONCLUSION

It is difficult to draw any conclusion from the
Icelandic experience concerning the viability of systems of private
enforcement in the twentieth century. Even if Icelandic institutions
worked well then, they might not work in a larger and more
interdependent society. And whether the Icelandic institutions did
work well is a matter of controversy; the sagas are perceived by many
as portraying an essentially violent and unjust society. tormented by
constant feuding. It is difficult to tell whether such judgments are
correct. Most of the sagas were written down during or after the
Sturlung period, the final violent breakdown of the Icelandic system
in the thirteenth century. Their authors may have projected elements
of what they saw around them on the earlier periods they described.
Also, violence has always been good entertainment, and the saga
writers may have selected their material accordingly. Even in a small
and peaceful society novelists might be able to find, over the course
of three hundred years, enough conflict for a considerable body of
literature.

The quality of violence, in contrast to other
medieval literature, is small in scale, intensely personal (every
casualty is named), and relatively straightforward. Rape and torture
are uncommon, the killing of women almost unheard of; in the very
rare cases when an attacker burns the defender's home, women,
children, and servants are first offered an opportunity to
leave.[45]
One indication that the total amount of violence may have been
relatively small is a calculation based on the Sturlung sagas. During
more than fifty years of what the Icelanders themselves perceived as
intolerably violent civil war, leading to the collapse of the
traditional system, the average number of people killed or executed
each year appears, on a per capita basis, to be roughly equal to the
current rate of murder and nonnegligent manslaughter in the United
States.[46]

Whatever the correct judgment on the Icelandic
legal system, we do know one thing: it worked--sufficiently well to
survive for over three hundred years. In order to work, it had to
solve, within its own institutional structure, the problems implicit
in a system of private enforcement. Those solutions may or may not be
still applicable, but they are certainly still of
interest.

APPENDIX A Wages and
Wergelds

Two different monies were in common use in
medieval Iceland. One was silver, the other wadmal (va*d*mal), a
woolen cloth. Silver was measured in ounces (aurar) and in marks; the
mark contained eight ounces. Wadmal was of a standard width of about
a meter, and was measured in Icelandic ells (alnar) of about 56
centimeters.[47]
The value of an ounce (eyrir) of silver varied, during the twelfth
and thirteenth centuries, between 6 and 7 1/2 ells.[48]
The "law ounce" was set at 6 ells;[49]
this appears to have been a money of account, not an attempt at price
fixing.

Gragas, the earliest book of Icelandic written
law, contains a passage setting maximum wages--presumably an attempt
to enforce a monopsonistic cartel agreement by the landowning
thingmen against their employees.[50]
The passage is unclear, Porkell Johannesson estimates from it that
the farm laborer's wage, net of room and board, amounted to about one
mark of silver a year and cites another writer who estimates it at
about three-quarters of a mark.[51]
Porkell Johannesson also states that wages (net of room and board)
seem to have been low or zero at the time of settlement but to have
risen somewhat by the second half of the tenth century. He dates
Gragas to the second half of the twelfth century, or perhaps earlier;
Conybeare gives its date as 1117.

These figures give us only a very approximate idea
of Icelandic wages. The existence of maximum wage legislation
suggests that the equilibrium wage was higher than the legislated
wage.[52]
But wages, as Porkell Johannesson points out, must have varied
considerably with good and bad years; the legislation might be an
attempt to hold wages in good years to a level below equilibrium but
above the average wage.

I have attempted another and independent estimate
of wages, based on the fact that one of the two monetary commodities
was woolen cloth, a material which is highly labor intensive. If we
knew how many hours went into spinning and weaving an ell of wadmal,
we could estimate the market wage rate; if it takes y hours to
produce one ell, then the wage of the women making cloth (including
the value of any payment in kind they receive) should be about
l/y.

I have estimated y in two ways--from figures given
by Hoffman for the productivity of Icelandic weavers using the same
technology at later periods,[53]
and from estimates given me by Geraldine Duncan, who has herself
worked with a warp- weighted loom and a drop spindle, the tools used
by medieval Icelandic weavers.[54]
Both methods lead to imprecise results: the first because reports
disagree and also because the sources are vague whether the time
given is for weaving only or for both weaving and spinning, the
second because Mrs. Duncan did not know the precise characteristics
of wadmal, or precisely how the skill of medieval Icelandic weavers
compared with her own. My conclusion is that it took about a day to
spin and weave an ell of wadmal; this estimate could easily be off by
a factor of two in either direction. If we assume that, in a
relatively poor society such as Iceland, a considerable portion of
the income of an ordinary worker went for room and board. this figure
is consistent with that given in Gragas.

A rough check on these estimates of wages is
provided by the fact that the logsogumadr received an annual salary
of 200 ells of wadmal, plus a part of the fines for certain minor
offenses. While his position was not a full-time one, it involved
more than just the two weeks of the Althing; he was required to give
information on the law to all comers. Since the man chosen for the
post was an unusually talented individual, it does not seem
unreasonable that the fixed part of his salary (which, unlike the
wages discussed before, did not include room and board) amounted to
five year's wages, or an amount of wadmal which would have taken
about ten months to produce. Thus, this figure is not inconsistent
with my previous estimate of wages.

It is interesting to note that during the Sturlung
period, when wealth had become relatively concentrated, the richest
men had a net worth of about three to four hundred year's production
of wadmal--or about a thousand cows. The former figure would
correspond today to about six million dollars, but the latter to only
a few hundred thousand--wages having risen considerably more, over
the last millenium, than the price of cattle.

Table 1 gives values for a number of things in
ounces, ells, years of production of wadmal, and years of wages. The
ounce is assumed to be worth six ells, the year s production of
wadmal to be three hundred ells (three hundred days at one ell/day)
and the year's wage to be one mark of forty-eight ells.

Ounces

Ells

Years Production of Wadmal

Years Wages

Source

Normal Price of Male thrall

12

72

.24

1.5

Carl O. Williams, supra note
4, at 29

Manumission price of thrall

12

72

.24

1.5

Sveinbjorn Johnson, supra
note 4, at 225

Wergeld for thrall

12

72

.24

1.5

Id.

Wergeld for free man

100

600

2

12.5

Njal's saga, supra note 3,
at 108

Wergeld for free man
a

400

2400

8

50

Id.

Wergeld for important man

200

1200

4

25

Id. at 255 ns.

Wergeld for important
mana

800

4800

16

100

Id.

Law-speaker salary

200+

.8+

5+

Vigfusson & Powell,
supra note 1, at 348

Wealth of very rich man
(Sturlung Period)

120,000

400

2500

Einar Olafur Sveinsson, supra note
44, at 45

Wealth of very rich man
(Sturlung period)

96,000

320

2000

Id.

Price of cow
(c. A.D. 1200)

90-96

.3-.32

1.9-2

Id. at 56

a Magnusson and Palsson (Njal's saga, supra note 3, at 63,
trans. n.) interpret the ounce by which compensations are measured as
probably meaning "an ounce of unrefined silver ... worth four legal
ounces," Williams, supra note 4, at 31, interprets it as the legal
ounce.

Wergeld for a thrall, the price of a thrall. and
the manumission price of a thrall were all equal, as might be
expected. The price of a thrall presumably represents the capitalized
value of his production net of room and board. It seems at first
surprising that this should amount to only a year and a half of wages
(also net of room and board), but we must remember that wages,
according to Thorkell Johanneson, were lower in the early period,
when thralldom was common; thralldom disappeared in Iceland by the
early twelfth century, about when Gragas was being
written.

It is worth noting that the wergeld for a thrall
was considerably lower than for a free man. This is to be expected.
The wergeld for a thrall was paid to his master and it was his
master, not the thrall, who had some part in the political bargaining
process by which, I have argued, wergelds were set. The value of a
thrall to his master would be the capitalized value of his net
product. But the value of a free man to himself and his family
includes not only his net product but also the value to him of being
alive. Food and board, in other words, are expenses to the owner of a
thrall but consumption to a free man. Furthermore, one would expect
that the costs of the thrall to the owner would include costs of
guarding and supervision that would not apply to the free man's
calculation of his own value.

If we interpret the "ounce" of Njal's Saga as a
legal ounce, the usual wergelds for free men again seem somewhat low,
ranging from 12 l/2 year's wages for an ordinary man to twice that
for a man of some importance.[55]
Here again. we must remember that there is considerable uncertainty
in our wage figures. Twelve and a half years' wages might be a
reasonable estimate of the value of a man to his family, assuming a
market interest rate of between 5 and 10 percent, but it hardly seems
to include much allowance for his value to himself. If we accept the
interpretation in Magnusson and Palsson[56]
of the ounce in which the wergelds of Njal's Saga are paid as an
ounce of unrefined silver, worth four legal ounces, the figures seem
more reasonable.

APPENDIX B

The first step in applying the Icelandic system of
private enforcement to a modern society would be to convert all
criminal offenses into civil offenses, making the offender liable to
pay an appropriate fine to the victim. In some cases, it might not be
obvious who the victim was, but that could be specified by
Legislation. The Icelanders had the same problem and took care to
specify who had the right to pursue each case, even for procedural
offenses.[57]
For some minor offenses anyone could sue; presumably. whoever
submitted his case first would be entitled to the fine. It must be
remembered that specifying the victim has the practical function of
giving someone an incentive to pursue the case.

The second step would be to make the victim's
claim marketable, so that he could sell it to someone willing to
catch and convict the offender. The amount of the claim would
correspond approximately to the damage caused by the crime divided by
the probability of catching the criminal.[58]
In many cases it would be substantial.

Once these steps were taken, a body of
professional "thief-takers" (as they were once called in England)
would presumably develop and gradually replace our present
governmental police forces.

One serious problem with such institutions is that
most criminals are judgment proof: their resources are insufficient
to pay any large fine. The obvious way to deal with this would be
some variation on Icelandic debt-thralldom. An arrangement which
protects the convicted criminal against the most obvious abuses would
be for every sentence to take the form of "so many years or so many.
dollars." The criminal would then have the choice of serving out the
sentence in years or accepting bids for his services. The employer
making such a bid would offer the criminal some specified working
conditions (possibly inside a private prison, possibly not) and a
specified rate at which the employer would pay off the fine. In order
to get custody of the criminal, the employer would have to obtain his
consent and post bond with the court for the amount of the fine. In
order for the private-enforcement system to work, it would be
necessary for most criminals to choose to work off their sentences
instead of sitting them out (since their fines provide the enforcer's
incentive). This could be arranged by appropriately adjusting the
ratio between the number of years and the number of dollars in the
sentence.

There might be some crimes, such as murder, for
which the appropriate fine would be so high that the convicted killer
would be unable to work it off, however unattractive the alternative.
For such cases the system would break down and would have to be
supplemented by some alternative arrangement--perhaps a large bounty
paid by the state for the apprehension and conviction of
murderers.

It would be beyond the scope of this article to
argue the advantages and disadvantages of such a system, or to
compare at length its potential abuses with those of our present
system of enforcement and punishment; it would be beyond my
competence to discuss the legal problems, and in particular the
constitutional objections, that might be raised to its
introduction.